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January 5, 2008

Media coverage of cert grant in Kennedy case

This post at How Appealing collects all the major media coverage of the Supreme Court's decision yesterday to review the constitutionality of state laws that make the death penalty a punishment for the crime of child rape (basics here). Here's one snippet from the New York Times piece by Linda Greenhouse:

The new case, from Louisiana, is likely to be argued in April, meaning that during the course of its current term, the Supreme Court will be examining both the most common method of execution and a categorical question about which crimes are appropriate for the death penalty.

No one has been executed in the United States for a crime other than murder since 1964. Of some 3,300 inmates of death row today, only two are facing execution for an offense that did not involve a killing. Both are on Louisiana’s death row. The Supreme Court agreed to hear an appeal from one of them, Patrick Kennedy, who was convicted and sentenced to death in 2004 for raping his 8-year-old stepdaughter.

As I have detailed in a number of prior posts, I think the Kennedy case is in various ways a great and a terrible vehicle for considering these Eighth Amendment issues. Also, I still believe, as I suggested in a prior post, that the "best" outcome in Kennedy would be for the Governor of Louisiana to commute Kennedy's sentence to life imprisonment in order to avoid this case from making bad law.

Some prior posts on the Kennedy litigation and the death penalty for child rape:

As David Zlotnick and FAMM have effectively documented here and here, many well-known conservatives and Republican-appointed judges have spoken out forcefully against federal mandatory minimum sentences. Policy criticisms of mandatory minimum sentences have come from, inter alia, the late Chief Justice Rehnquist, current Seventh Circuit Chief Judge Frank Easterbrook, and former Utah District Judge Paul Cassell, none of whom will ever be accused of having been too liberal for the American public.

However, as now revealed by this ABC News piece discussing Hillary Clinton's efforts to bounce back from her defeat in Iowa, the Clinton campaign team is suggesting that Barack Obama's opposition to federal mandatory minimum sentences makes him too liberal for the Democratic Party's nomination:

Sen. Hillary Clinton went on the counterattack today, one day after a stinging defeat in the Iowa caucuses to Illinois Sen. Barack Obama. She said New Hampshire voters need to take a hard look at Obama, suggesting that they shouldn't just buy into his message of "hope" without analyzing his policies....

While the senator was vague, her campaign pointed out to ABC News examples of Obama's liberal positions, including his 2004 statement to abolish mandatory minimum sentences for federal crimes.

This story further confirms my concern that Senator Clinton is not just willing, but apparently quite eager, to use the old "soft-on-crime" scare strategy in an effort to swing voters her way. Such a strategy is extraordinarily disappointing on the merits and telling coming from Senator Clinton now. Moreover, I cannot help but suggest that there is a sniff of racism in the Clinton camp's now repeated efforts to adopt a classic "Willie Horton" tactic in the hope of scaring (mostly white) voters away from a (non-white) candidate because of fear of (mostly minority) offenders subject to extreme prison terms under the old crack guidelines and federal mandatory minimums.

This latest Clintonian move of assailing Obama for once calling for abolition of mandatory minimums provides strong evidence that her campaign has now, in classic pop culture terms, "jumped the shark."

Important(?) USSC public meeting next week

As now metioned at the US Sentencing Commission's website, a "public meeting of the Commission is scheduled for Wednesday, January 9, 2008, at 11:30 am," and this official agenda highlights that the meeting will include "Possible Votes to Publish Guideline Amendments and Issues for Comment" and "Possible Vote to Publish Amendment to Rules of Practice and Procedure."

I seriously doubt that the USSC has anything on tap that's on par with its recent crack work. Nevertheless, I am hopefully optimistic that the Commission will be continuing to grapple, though its amendments and issues for comment, with important aspects of the post-Booker world (especially now that it ever more clear that a significant legislative response to Booker is extraordinarily unlikely anytime soon).

January 4, 2008

Supreme Court grants cert on three big sentencing issues!!

I have spent the whole day talking about sentencing without being on-line, and I return to my computer to discover that the Supreme Court has made my favorite subject their favorite subject in cert grants. This post at SCOTUSblog has all the details of six grants today, three of which involve sentencing issues. Here are the basics from Lyle Denniston's report:

The Supreme Court agreed on Friday to decide whether it is unconstitutional to impose a death sentence for the crime of child rape. This was one of six new cases granted review. The earliest any of these cases will be argued probably is the Court’s April sitting, beginning April 14.

The new capital punishment case involves Patrick Kennedy, a 43-year-old black man from suburban New Orleans — the only individual in the nation now on death row for committing a non-homicide crime. He was sentenced to die after being convicted of raping his eight-year-old stepdaughter. The case is Kennedy v. Louisiana (07-343). Louisiana is one of only five states that make child rape a capital crime. Kennedy’s lawyers argued that, in the other four states with such laws, prosecutors refuse to seek the death sentence for such crimes. They contend that enforcing a death sentence for the crime of child rape contradicts the Supreme Court’s 1977 decision (Coker v. Georgia) barring the death penalty for rape — a decision involving rape of an adult. The appeal also contends that a death sentence for child rape is so rare that it is cruel and unusual punishment under the Eighth Amendment.

In a second sentencing case granted review, the Court said it would decide whether a judge must give both sides notice in advance of imposing a criminal sentence that departs from the Sentencing Guidelines. The case is Irizarry v. U.S. (06-7517). The appeal asks whether such notice is required when the planned departure is based on a rationale not discussed in a presentence report or in filings before the sentencing hearing. The Eleventh Circuit Court ruled that such notice is not required because, now that the Sentencing Guidelines are advisory (under Booker v. U.S., 2005), both the prosecution and the defense will be aware that the sentencing court may depart from the Guideline range in using its discretion to consider all sentencing factors. Other Circuit Courts still require the notice. The Court thus will continue to explore the fallout from its recent Guidelines rulings.

In a third sentencing case accepted for review, the Court indicated it will decide whether a federal appeals court may increase a criminal sentence on its own, if the government has not filed an appeal. The case is Greenlaw v. U.S. (07-330).

Ironically, I am slow to report this major news on my blog because I was at a AALS conference session talking about whether law professors should blog.

The two biggest losers in Iowa — Mitt Romney and Hillary Clinton — have the least progressive records and/or positions on sentencing issues: Romney has taken pride in never granting a pardon and he attacked Huckabee on his clemency record; Clinton showed her affinity for tough rhetoric over sound policy and fairness by opposing making the new crack guidelines retroactive (details here and here).

Of course, crime and punishment issues played a very minor part of the Iowa campaign. But this fact is a itself an important: Clinton's political team, as noted here, last month "said that Obama's support for retroactivity in drug sentences would kill him with tough-on-crime white independents." But, even though Iowa would presumably have lots of these (mythical?) "tough-on-crime white independents," Obama did pretty well there. Similarly, Romney clearly thought he could score points with a "soft-on-crime" attack ad going after Huckabee, but the Iowa results suggest that strategy backfired.

As regular readers know, I have long believed that the politics of crime and punishment are much different now than they were in 1988 and 1992 presidential election cycles. After the 1988 loss and the 1992 win, Democrats concluded that they had to get tough, and this was likely a sound political judgment in light of crime rates and other post-Reagan realities of that era. But in 2008, a whole lot of voters — especially those under 30 — fear terrorists a lot more than drug dealers, and a message of re-entry hope now sounds a lot better than street crime fear. (Or perhaps, after having downloaded songs illegally using Napster, and having engaged in "illegal" sex as teenagers, and having enjoyed pot and perhaps other drugs casually, many voters now strongly need to believe that, as President George Bush said in his 2004 State of the Union address, "America is the land of second chance.")

Like so many pundits this morning, I am surely trying to read too much into the votes of a few thousand people in Iowa. Nevertheless, it seems fair to conclude that "soft-on-crime" attacks failed in Iowa, and I will be watching the campaigns and the results over the next few weeks and months to see if any shrewd strategists recognize that the progressive talk on crime and punishment may not just be possible, but may actually now be essential to political success.

Fascinating case about victim rights at sentencing

The Salt Lake Tribune has this new article reporting on a fascinating ruling regarding victim rights at sentencing. The piece is headlined "Trolley rampage: Parents can't speak at sentencing; Judge rules daughter is victim of shooting spree, not handgun case," and here is how it begins:

A judge on Thursday ruled the parents of a woman killed in the Trolley Square rampage cannot speak in court when the man who illegally sold the handgun used to kill their daughter is sentenced.

Sue and Ken Antrobus had asked that their daughter be declared a victim in the case of Mackenzie Glade Hunter, who has pleaded guilty to supplying gunman Sulejman Talovic with the .38-caliber Smith & Wesson that fired the fatal shot. That designation would allow them to speak as representatives of their daughter, Vanessa Quinn, when Hunter is sentenced on Jan. 14, and to describe the devastating impact of her death.

U.S. District Judge Dale Kimball noted that Quinn and her parents are "undoubtedly" victims of Talovic's shooting spree. However, federal law does not consider them victims of the gun sale that took place eight months before Quinn was killed, the judge said. "While the court does not want to minimize in any way the harm suffered by those who were killed, injured, or had loved ones killed or injured by Talovic, that harm is not sufficiently connected to Hunter's offense of unlawfully selling a firearm to a minor for this court to consider Hunter's actions to be the direct and proximate cause of the harm," Kimball wrote in his decision.

Kimball also denied the Antrobuses' request for information in a presentence report to bolster their argument that Hunter should get a 99-month sentence, and a request for $107,000 in restitution for funeral expenses and lost income they had hoped to put into the Vanessa Quinn Scholarship Fund.

"Death Penalty Walking"

On Jan. 7, the supreme court will hear oral arguments in a pair of Kentucky lawsuits challenging the lethal three-drug cocktail used in most U.S. executions.... In a perfect world, perhaps, the government wouldn't wait 30 years and several hundred executions to determine whether an execution method makes sense. But the world of capital punishment has never been that sort of place....

Decades of well-intentioned brainstorms like [the three-drug cocktail] -- legal, medical, procedural, political -- have accumulated into one thoroughly screwed-up system. Any other government program that delivered 3% of what it promised -- while costing millions of dollars more than the alternative -- would be a scandal, but the death penalty is different. In its ambiguity, complexity and excess, the system expresses a lot about who we are as a nation. We're of mixed minds, and most of us would rather not spend a lot of time thinking about killing. A majority of Americans support the idea of capital punishment -- although fewer are for it if given a choice of life without parole. At the same time, a substantial number in a recent poll said they could not serve on a death-penalty jury.

Our death penalty's continued existence, countering the trend of the rest of the developed world, expresses our revulsion to violent crime and our belief in personal accountability. The endless and expensive appeals reflect our scrupulous belief in consistency and individual justice. This is also a nation of widely dispersed power -- many states, cities and jurisdictions. Out of this diversity has emerged the staggering intricacy of death-penalty law, as thousands of judges and legislators from coast to coast struggle to breathe real-life meaning into such abstract issues as what constitutes effective counsel, what is the proper balance of authority between judge and jury, what makes a murder "especially heinous," what qualities and defects in a prisoner compel mercy, and so on.

Such parsing has gone on for nearly 50 years, since the gestation of the model penal code after World War II. But it isn't getting us anywhere. Even supporters of capital punishment can't admire a process in which fewer than 3 in 100 death sentences imposed in the U.S. are carried out in any given year. California's death row houses more than 660 prisoners, but no one has been executed in the state in nearly two years. Pennsylvania, with 226 inmates on death row, hasn't carried out a sentence since the '90s. In Florida a spree killer named William Elledge, who confessed to his crimes and has openly discussed his guilt in interviews, will soon complete his 33rd year on death row with his appeals still unresolved. Thirty-three years! He's one of about 55 men in Florida alone with more than 25 years on death row.

The more effort we invest in trying to make this work, the harder it seems to be to give up. The death penalty in the U.S. is a wreck, but it's our wreck -- a collage of American attitudes, virtues and values.

The themes in this Time piece echoes themes in my recent writing on Baze on other recent scholarship available here and here and here.

A circuit's struggles after Gall and Kimbrough

Writing in the Fulton County Daily Report, Alyson Palmer has this long article headlined "11th Circuit Wrestles With Sentencing: Panels split in upholding sentences in child pornography and bribery cases that fell below sentencing guidelines." Here are excerpts from the start of the piece:

To many, the justices from the U.S. Supreme Court last month sent a simple message to appeals courts around the country: When reviewing the sentencing decisions of trial judges, back off.

But last week a judge on the 11th U.S. Circuit Court of Appeals signaled that he's not rolling over. Judge Joel F. Dubina's response to the high court came in a case in which federal prosecutors in Florida had challenged as too lenient a seven-year sentence for a distributor of child pornography. The sentence was more than five years under the sentencing range outlined in the federal sentencing guidelines, but over Dubina's dissent, two other judges affirmed the seven-year term.

That decision appears to follow the deferential approach adopted by the high court in a pair of major sentencing decisions issued Dec. 10, Gall v. United States, 128 S.Ct. 586, and Kimbrough v. United States, 128 S.Ct. 558.... While it didn't cite Gall specifically, another dissent issued this week, in the long-running bribery case of two men convicted over a Fulton County, Ga., bond deal, also demonstrated that the 11th Circuit is wrestling with sentences. In that case, Judge Edward Carnes was on the losing end of a 2-1 vote that affirmed the sentences of Michael deVegter and Richard P. Poirier Jr., which prosecutors argued were too short.

January 3, 2008

Pardon politics and the 2008 campaign

As all political junkies breathlessly await tonights results from Iowa, I figure it is a good time to speculate about whether there will be continued attention to pardons and other clemency issues as the 2008 campaign unfolds. Of course, the go-to place for a pardon focus is P.S. Ruckman's blog, and here has these notable recent posts focused on the Republican candidates' kerfufling over clemency issues:

Relatedly, there are some quite notable defendants whose possible pardon could readily create campaign political debates. Lewis Libby, of course, comes to mind. Also, as detailed in this new commentary, folks are still calling for pardons for the former Border Agents. Here is the start of that commentary: "Before leaving the White House, President Bush should do the right thing and pardon the two Border Patrol agents who were sentenced to lengthy prison terms for shooting a fleeing drug smuggler — a case that's been called a 'prosecutorial travesty.'" I wonder if and when during a debate the candidates will be asked if they will grant a pardon to the Border Agents if Prez Bush fails to do so before leaving office.

The crack sentencing reasonableness remand is in an unpublished order that says as little as possible on the merits. Nevertheless, it hints that the Second Circuit might read Kimbrough to justify remands in all crack sentencing cases before the Supreme Court's decision.

Examining why states have not tried improving execution protocols

Adam Liptak has this great article in today's New York Times, headlined "States Hesitate to Lead Change on Executions." Here are excerpts from a must-read:

When a state panel recommended last April that Tennessee abandon the three chemicals used in executions across the nation in favor of the single drug usually used in animal euthanasia, the state’s corrections commissioner said no. Though the move would have simplified executions and eliminated the possibility of excruciating pain, the commissioner, George Little, said Tennessee should not be “out at the forefront” of a decision with “political ramifications,” according to recently disclosed evidence in a death row inmate’s lawsuit.

Mr. Little’s decision helps illuminate one of the questions lurking behind the year’s most eagerly anticipated death penalty case: Why have states so doggedly and uniformly clung to an execution method with the potential to inflict intense pain when a simpler one is readily available?

When the Supreme Court hears arguments on Monday in Baze v. Rees, the Kentucky case that has led to a de facto national moratorium on executions, it will mostly be concerned with the question of what standard courts must use to assess the constitutionality of execution methods under the Eighth Amendment, which bars cruel and unusual punishment. But beyond that is the more practical question of why all 36 states that use lethal injections to execute condemned inmates are wedded to a cumbersome combination of three chemicals.

The answer, experts say, seems to be that no state wants to make the first move. Having proceeded in lock step to adopt the current method, which was chosen in part because it differed from the one used on animals and masked the involuntary movements associated with death, state governments would prefer that someone else, possibly the courts, change the formula first....

Some experts on executions say the debate over which chemicals to use is the wrong one. States have adopted a process that appears humane because it looks like medical treatment, Professor [Deborah] Denno said. But looks can be deceiving, she added. “To me,” Professor Denno said, “the firing squad is the most humane and perceived to be the most brutal.”

This article highlights not just death penalty realities, but also why courts often have to be "activist" to push forward sound criminal justice reforms. For various reasons (some of which I have discussed in recent scholarship here and here and here), elected officials are often unable or unwilling to avoid status-quo biases in the criminal justice arena. In this arena, courts often are the only institutional actors who can't completely avoid examining a pressing problem, and that very reality may make it essential for courts to get involved with issues that really should be solved by other branches (issues like prison overcrowding and sex offender restrictions are examples that come to mind in addition to the lethal injection mess).

In the execution arena, I have been saying for a while (see here and here) that Congress ought to have conducted hearings and examined proposals for an ideal execution method one the evidence of lethal injection problems became evident. But because elected national and state officials have not stepped up to the plate, the courts essentially have had to choice but to intervene and these matters made their way finally to the Supreme Court in Baze. Exactly what the Justices will do in Baze, however, is still hard to predict.

Previewing two coming ACCA cases

Though unlikely to get much media attention, the Supreme Court has two Armer Career Criminal Act cases on tap for argument on January 15 that should be of interest to sentencing and statutory interpretation fans. I wrote up a formal preview of these case for ABA's request, and the ABA folks have graciously allowed me to post my write-up here. This passage from my preview highlights why two seemingly little cases raise a lot of big issues:

Though technically raising pure issues of statutory interpretation, these ACCA cases implicate a number of cross-cutting jurisprudential and policy considerations. On the statutory construction front, the Justices frequently debate and disagree about whether to focus only on the express text enacted by Congress or on the broader legislative purposes and history that might help inform the text. Also, in the criminal justice context, some Justices (including some perceived to be conservative) regularly invoke various due process and fairness principles to reject expansive interpretations of federal criminal statutes urged by the Department of Justice. In addition, many Justices have expressed concerns in opinionsand speeches about rigid mandatory sentencing terms that sometimes unduly limit district judges’ discretion to achieve case-specific justice at sentencing. Further, in a series of (technically unrelated) recent constitutional rulings, a majority of Justices have consistently held that the Sixth Amendment’s jury trial right prevents district judges from making certain factual findings that increase the defendant’s maximum available sentence term.

January 2, 2008

Should Marion Jones get any prison time for lying to the feds?

In yet another case involving the intersection of sports, steroids and suspect statements, former Olympic star Marion Jones is due to be sentenced in federal court next week for lying to federal authorities. This AP piece and this New York Daily News article provides details of the sentencing arguments Jones is making in the hope of avoiding any prison time. Here are snippets from the Daily News article:

Marion Jones has suffered enough, according to her lawyers, and she shouldn't have to go to jail for lying to federal authorities investigating steroid distribution and bank fraud. In a document filed Monday ... Jones' lawyers asked the court to give the disgraced Olympian probation instead of prison time....

According to a presentence memorandum filed by Jones' attorneys on Monday, the five-medal winner at the Sydney Olympics should not go to prison because has accepted responsibility for her actions "without excuse, equivocation or any attempt to shift blame." The document noted that Jones has "suffered enormous personal shame." "She has been cast from American hero to national disgrace," it added.

The document quoted letters from friends and relatives who describe Jones' humility, discipline and her approachability. They also cite her "genuine kindness, respect and modesty towards all: and note her devotion and dedication to her two sons, an infant and a 4-year-old. "Marion is essential to the care of both of her children in every way that a mother can be," the document said. "Her infant son requires her daily nurture. Her 4-year-old also depends on her."

The full sentencing memo is available at this link, and it details that Jones's guideline range is 0-6 months as a result of her plea agreement (in notable contrast to the much longer guideline ranges faced by Victor Rita and Lewis Libby, who were convicted after a trial of similar offenses).

Not surprisingly, the Jones submission emphasizes 3553(a) factors and the purposes of punishment. Consider, for example, this paragraph from the sentencing filing: "There clearly is no need here for a term of imprisonment to deter Marion Jones-Thompson who, other than the matter presently before the court, has led a completely law-abiding life, without any blemishes on her record. Nor is any prison term necessary to protect the public from Ms. Jones-Thompson, who poses no threat to the community." Also, the submission cites the recent Gall opinion and its emphasis on the import and seriousness of a term of probation with various limits on a probationer's liberty.

Deep sentencing thoughts from The Volokh Conspiracy

I am in NYC for the next few days attending the annual AALS conference. Though this year's AALS has lots of panels that interest me, there is nary a panel with a sentencing focus. Fortunately, the folks at The Volokh Conspiracy give sentencing fans some deep food-for-thought with these recent posts:

Split Seventh Circuit decision on an appeal waiver

A notable Seventh Circuit panel, composed of Chief Judge Easterbrook and Judges Posner and Wood, splits over enforcing a plea with an appeal waiver in US v. Sura, No. 05-1478 (7th Cir. Jan. 2, 2008) (available here). Writing at great length for the majority, Judge Wood finds a way to let the defendant out of his plea. Chief Judge Easterbrook is not impressed with the majority's work, and he minces few words in explaining why.

My debatable PENNumbra views on Baze

Throughout December, Alison Nathan and I have been exchanging thoughts on the Baze lethal injection case for a PENNumbra debate to be published later this month. Thanks to SSRN, the draft debate is now available at this link. Here is the simple abstract:

Professors Berman and Nathan debate the legal, political, and practical context in which the Supreme Court will decide Baze v. Rees, a constitutional challenge to Kentucky's three-drug lethal injection protocol.

I personally got a lot of insights from participating in this debate. I hope readers will, too (and will share reactions in the comments).

A notable (but unpublished) 2007 leftover from the Tenth Circuit

A helpful reader flagged for me a notable unpublished opinion from the Tenth Circuit last year in the case of US v. Garcia-Salas, No. 07-2126 (10th Cir. Dec. 27, 2007) (available here). Here is how the opinion starts:

Having interpreted this court’s precedents as virtually foreclosing variances from the United States Sentencing Guidelines, the district court imposed a sentence at the bottom of the Guidelines range. We might disagree with that interpretation but it is unnecessary to revisit our precedents. Under the Supreme Court’s recent decisions in Gall v. United States, No. 06-7949, 2007 WL 4292116 (S. Ct. Dec. 10, 2007), and Kimbrough v. United States, No. 06-6330, 2007 WL 4292040 (S. Ct. Dec. 10, 2007), it is clear that the district court had greater sentencing discretion than it thought it did. Accordingly, we reverse and remand for resentencing.

There are many interesting aspects of this ruling, and it spotlights for the Tenth Circuit and all other appellate courts the importance of making pellucidly clear to lower courts the extent of the sentencing discretion they have after Booker.

A cornucopia of capital headlines to ring in 2008

Though 2007 was quite a year for the death penalty (some basics here and here), 2008 promises to be even more eventful and dyanmic. One main reason is because of Supreme Court activities (as the new CC Review details). But this array of new year stories and commentaries shows many dimesions to the capital debates brewing in 2008:

"Pa. committed to death penalty; The state Supreme Court has affirmed four sentences; Prosecutors are trying to get executions carried out" here from the Philadelphia Inquirer

"Death penalty ban could boost efforts across the country" here from the Newark Star-Ledger

"Falling out of love with death: Though a majority of Americans back capital punishment, surveys find growing unease over it" here from the Los Angeles Times.

"Who would Antonin Scalia torture? Next week, when the Supreme Court hears a case challenging the use of lethal injections, we may learn more about the legal limits to state-sanctioned pain" here from Salon.com

January 1, 2008

Pa court makes sure state sex offenders make resolution not to lie

As detailed in this AP story, a "Pennsylvania appeals court ruled Monday that forcing a convicted sex offender to take annual lie detector tests does not violate constitutional protections against self-incrimination." The ruling came in Commonwealth v. Shrawder, No. 1894 MDA 2006 (Pa. Super. App. Dec. 31, 2007) (available here), and here is a snippet:

Upon considering the caselaw cited above and the testimony presented at the October 11, 2006, hearing, we find the therapeutic polygraph is an essential tool for a therapist whose job it is to reveal an offender’s deception and encourage him or her to confront his or her urges and deviant behavior. The test results further the primary goal of counseling as part of a sexual offender’s sentence, which is to rehabilitate the offender and prevent recidivism, with reasonably small incremental deprivations of the offender’s liberty. We also note that, as Mr. Kobierecki’s testimony indicates, the candor of Appellant or any other probationer is always expected during a probation inquiry, whether or not his responses are being recorded through a polygraph test. We therefore conclude that polygraph testing can, and in this case does, further sentencing goals without excessive deprivations of liberty and hold that a therapeutic polygraph is a proper element in a sex offender treatment program for a convicted sexual offender and does not violate a probationer’s rights under the Fifth Amendment to the United States Constitution or under Article One, Section Nine of the Pennsylvania Constitution, so long as the inquiries made pursuant to it relate to the underlying offense for which an offender has been sentenced and do not compel him or her to provide information that could be used against him or her in a subsequent criminal trial.

Federal criminal caseload data from 2007 year-end report

Though partially noted here, I though a separate post was justified to highlight the federal criminal justice statistics in CJ Roberts's 2007 year-end report (available here). Here is the specific data that caught my eye:

The number of criminal cases filed in 2007 rose by 2% to 68,413 cases, and defendants in these cases increased 1% to 89,306.... Property offense cases grew 7% to 12,621, and defendants in such cases rose 6% to 16,277. Fraud cases rose 13% to 8,101, and fraud defendants climbed 10% to 10,804. Immigration filings increased 2% to 16,722 cases and 17,948 defendants. The charge of improper reentry by an alien accounted for 74% of all immigration cases. Sex offense filings jumped 31% to 2,460 cases, and defendants in such cases climbed 30% to 2,572. The growth in sex offense filings stemmed primarily from filings related to sexually explicit materials, and to a lesser degree, from all other sex offenses. Traffic offense filings for both cases and defendants jumped 22% to 4,427 and 4,429, respectively. Drug cases dropped 2% to 17,046, 12 and defendants charged with drug crimes fell 2% to 29,885. Filings of drug cases and defendants declined as filings associated with non-marijuana drugs fell....

The number of persons under post-conviction supervision in 2007 increased by 2% to 116,221 individuals. As of September 30, 2007, the number of individuals serving terms of supervised release after their release from a correctional institution totaled 89,497 and constituted 77% of all persons under post-conviction supervision. During the previous year, persons serving terms of supervised release were 75% of all those under post-conviction supervision. Persons on parole fell more than 10%, from 2,876 individuals in 2006 to 2,575 individuals in 2007. Parole cases now account for less than 2% of post-conviction cases. Because of a continuing decline in the imposition of sentences of probation by both district court judges and magistrate judges, the number of persons on probation decreased by 5% to 23,974 individuals.

Chief seeking more love and more money in the New Year

As all true law geeks know, the first few minutes of th new year always brings an end-of-year report on federal judiciary from the Chief Justice of the United States. The report from CJ Roberts this year, which is available here, urges appreciation for the work of the American judiciary, seeks more effective inter-branch communication, emphasizes the importance of judicial integrity, and calls for passage of pending legislation to increase judges' pay. Lyle Denniston provides a summary here at SCOTUSblog, and How Appealing assembles media coverage here.

Of course, I'm always interested in the Chief's report on caseload developments, which are still reflecting the impact of the Court's January 2005 Booker decision. Here are a few caseload details from the year-end report:

The number of appeals filed in the regional courts of appeals in fiscal year 2007 decreased by 12% to 58,410. All categories of appeals, except bankruptcy appeals, fell. The decline of the past two years was the result of a reduction in appeals from administrative agency decisions involving the Board of Immigration Appeals (BIA), as well as decreases in criminal appeals and federal prisoner petitions brought about by the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). The decline is the second successive drop after the record level set in fiscal year 2005.

Across the nation, the number of criminal appeals dropped by 14% to 13,167 filings, approaching levels that existed before criminal appeals soared in response to the decision in Booker....

The number of criminal cases filed in 2007 rose by 2% to 68,413 cases, and defendants in these cases increased 1% to 89,306. The median case disposition time for defendants declined slightly from 7.1 months in 2006 to 7.0 months in 2007, yet this disposition time remains 21 days longer than in 2004, an indication of the time that courts have needed to process post-Booker cases.

December 31, 2007

Intriguing Third Circuit sentencing loss closes out 2007

Though federal defendants had some big sentencing wins in the US Supreme Court with Gall and Kimbrough at the end of 2007, it is perhaps fitting that the year ends with a circuit loss for a defendant in US v. Williams, No. 05-4153 (3d Cir. Dec. 31, 2007) (available here). In Williams, a Third Circuit panel splits over whether the defendant breached his plea agreement by arguing for a criminal history departure: the majority holds that he did and remands for resentencing before a new sentencing judge; the dissent complains that "here there was no breach in arguing for a guideline departure on the criminal history and defendant presented his argument for a variance and mitigation under the guidelines with the permission of the District Court."

Both opinions in Williams make for interesting reading, and any circuit ruling about sentencing and plea agreements are consequential given the frequency of pleas with stipulated sentencing terms. In this context, I found especially notable the dissent's expression of concern by enforceability of certain plea terms in the wake of Booker:

I must also question whether a plea agreement to forgo argument on a crucial phase of sentencing, consideration of the § 3553(a) factors, should be enforceable. To deny the sentencing judge the ability to carry out his statutory duty and responsibility through consent of the parties seems to undermine the sentencing procedure Congress has mandated. The sentencing judge in this case chose to hear argument under § 3553(a), a ruling that was responsible and proper.

I have argued in a number of prior posts that Booker might cast new doubts on the validity of appeal waivers and other plea agreement terms that can undercut the policies reflected in the Sentencing Reform Act. To my knowledge, however, this dissent passage presents the first judicial suggestion that some plea terms might be unenforceable.

NY commentary assails "Ebenezer Spitzer"

Especially in the wake of the clemency debate between Republican candidates Romney and and Huckabee, I found interesting this local commentary assailing New York Governor Elliot Spitzer's early clemency record. Here is how the commentary starts:

A Quinnipiac University poll released before Christmas indicated that nearly half of New York voters—47 percent—believed that Gov. Eliot Spitzer could become a ‘kinder, gentler governor’ With Spitzer’s approval rating at it’s lowest level ever, almost two thirds of the populace dissatisfied with his job performance, Spitzer had a chance over the holidays to improve his position with the voters with the granting of executive clemencies.

But, as the scandal of Troopergate continues to dog him with allegations now surfacing that his office may have intentionally purged e-mails and subpoenas issued commanding his presence before a Senate investigations committee, Spitzer gained himself even more criticism with his failure to grant any executive clemencies this year.

Instead of improving his image and working to become a “kinder, gentler governor”, it’s was “Bah Humbug!” for Spitzer who apparently decided to be more like Ebenezer Scrooge and The Grinch Who Stole Christmas, supporting the poll findings that 30 percent of voters don’t think it’s possible for Spitzer to lighten up.

Strong Bazescholarly bloggy insights

Writing at The Volokh Conspiracy, Orin Kerr has this terrific post about the Baze lethal injection case to be argued in the Supreme Court next week. Here is an excerpt:

I think that Baze is an unusual Supreme Court case for three different but related reasons: legal, factual, and strategic.

First, as a matter of law, there is relatively little legal precedent on point, and the precedent that exists can be interpreted in different ways. The Court has said that the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain," Whitley v. Albers, 475 U.S. 312, 319 (1986). But how do you measure what is necessary — necessary compared to what alternative?

Second, because everyone agrees that the current method of execution is painless if the procedure is carried out without error, the litigation is largely over the somewhat novel question of risk of error — how much of a risk of error is too much for the Constitution, and how can judges tell how risky a particular proceeding may be?

Third, strategically, I think it's fair to assume that counsel for the petitioners have goals pretty different from what they're forced to argue. Presumably counsel's the goal is to end executions, not minimize the chances of pain during them.

Orin has many other strong insights throughout his extended post. (Indeed, I'd call the post great scholarship if Orin wasn't on record arguing "that the blogging format is not well-suited to advance scholarship.") Orin ends with this prediction:

What's going to happen in the case is anyone's guess. If I had to guess — and this is really just a wild guess — I would guess that (a) there will be no one majority opinion, but (b) the controlling opinion will allow this particular execution based on the details of the record and give lots of guidance to push other states to improve their practices. That won't really answer the constitutional question, but it will kick the ball down the road for a few years.

Though I share Orin's instinct that Baze is a hard case for a lot of Justices for a lot of reasons, I predict (or at least hope) that we will get a majority opinion in some form. The Justices have been dodging the hard issues here for a number of years, and the Hill decision from 2006 (which I analyzed here) reflected the Justices (last?) attempt to urge states and lower courts work this out without a clear constitutional standard. But jurisprudential vagueness has only produced more litigation and disparate outcomes over the last two years. I suspect that a majority of Justices recognize the need for a firm legal standard, and that Chief Justice Roberts (and/or Justice Stevens) will work especially hard to get five votes for some defined legal standard that lower courts can apply.

That said, even with a defined legal standard established by a majority opinion in Baze, I suspect there will be enough vagueness in the outcome and the standard to ensure, as Orin suggests, additional lower court litigation over specific execution protocols in different states.

NY litigation over the state of parole

Yesterday's New York Times had this interesting piece about disputes and litigation over the rights of state felons to be granted parole. Here is how it starts:

Last year, a group of violent felons sued the administration of Gov. George E. Pataki, charging that the state was ignoring the law by categorically denying them parole. They figured their chances would improve under his successor, Eliot Spitzer, even though Mr. Spitzer was a tough former prosecutor who supported the death penalty.

In the spring, they were heartened when Mr. Spitzer’s new chairman of the State Parole Board, George B. Alexander, reminded his fellow commissioners that they were obligated to consider the potential for rehabilitation, remorse and recidivism as well as the severity of the original crime.

By fall, lawyers for the plaintiffs and Attorney General Andrew M. Cuomo were on the verge of a legal settlement that would have granted 1,000 or so inmates new parole hearings. At the last minute, word of the settlement was leaked to the press, around the same time that the board approved parole for a man who had taken part in a holdup that led to a police officer’s death. Among the critics was Patrick J. Lynch, president of the Patrolmen’s Benevolent Association in New York City, who said, “Violent felons should not be eligible for parole, and cop killers should stay incarcerated for life.”

With Mr. Spitzer’s political capital depleted and the governor hardly eager to embark on another unpopular crusade, the Division of Parole, which reports to the governor, rejected the settlement in November.

December 30, 2007

Is gender bias in capital punishment a serious problem?

Though many justifiably express concerns about racial bias in the application of the death penalty, the potential gender bias in capital punishment systems get far less attention. But new horrific killings in Washington state bring up these interesting gendered issues, as this new article from the Seattle Times spotlights. Here are excerpts:

If precedent is an indication, prosecutors may face an additional challenge should they opt to seek the death penalty against Michele Kristen Anderson, 29, charged in the killing of six of her relatives near Carnation Christmas Eve: No woman has been sentenced to die in Washington state.

Of the 3,300 inmates on death row in the U.S. in the last complete count, only 49 were women — less than 1.5 percent. "I think jurors, in general, would have a tougher time imposing the death penalty on a woman," said Snohomish County Deputy Prosecutor Chris Dickinson, who in 2003 unsuccessfully sought the death penalty against a woman convicted of hiring a group of teens to kill her boss.... Since 1977, nearly 1,100 inmates have been executed in the U.S.; only 11 were women....

Washington state has executed 77 inmates — all men — since 1904. Officials Friday could find only two instances in more than a quarter-century in which Washington prosecutors even asked jurors to sentence a woman to death....

Death-penalty experts disagree over whether the small number of women sentenced to die in the U.S. indicates a bias favoring women. In a 2001 interview, Victor Streib, a law professor at Ohio Northern University who tracks death-penalty cases against women, said, "It's like there's something more valuable about women's lives ... Women are also treated differently when they're victims." But Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said, "It could be a bias operating or it could just be there are so few cases of women committing crimes like this. It's a hard thing to prove one way or another."

New sex offender realities in Ohio

The Cincinnati Enquirer has this effective article, headlined "Sex offenders face tougher rules," discussing the realities surrounding a new sex offender law in Ohio. Here are excerpts:

Ohio’s 25,000 sex offenders got a big surprise earlier this month when the state told them that starting Jan. 1 they will have to register longer than they previously thought, and in many cases they’ll have to register more often.

Nearly one third will go from registering addresses with the sheriff’s office in the county where they live annually for 10 years to having to register every 90 days for life. Most others will have five years tacked onto their 10-year reporting requirement, according to the Ohio Attorney General’s Office. The tougher requirements — although controversial — are designed to keep better tabs on sex offenders, a group that moves often and frequently crosses state lines.

The closer scrutiny comes at a price, because registrations will nearly double, creating more work for sheriff’s offices, which are charged with making sure the addresses are correct and tracking down those who don’t register.

In passing the Adam Walsh Child Protection Act, state lawmakers say they are making communities safer. But critics say it’s a false sense of security because most offenders are people the victim already knows.... David Singleton, executive director of the Ohio Justice & Policy Center who works to reform the criminal justice system, said the law is unconstitutional. Amelia Orr, executive director of Community Counseling & Crisis Center in Butler County, which handles that county’s rape crisis program, called the registry a scare tactic that gives people a “superficial sense of security.”...

Continued crack coverage ... but to what effect?

Valuably, the US Sentencing Commission recent work lowering the crack guidelines sentencing ranges and the Supreme Court's Kimbrough decision continue to generate media stories about the inequities in federal drug sentencing. This AP article, for example, spotlights the continued 100-to-1 ratio reflected in crack and powder cocaine mandatory minimum sentencing terms even though, according to Nora Volkow, director of the National Institute on Drug Abuse, there is "no scientific justification to support the current laws."

Similarly, this morning's Los Angeles Times has this lengthy article headlined "Chipping at tough crack sentencing: Laws were ineffective and the drug's ravages overblown, experts say." The piece does a very effective job documenting the history crack-powder sentencing disparities, but then note the political problems that have continued to impede significant reform:

"I thought, 10 years ago, as the [crack] issue lost its prominence, one would see more rational decision-making," said Peter Reuter, professor of public policy at the University of Maryland and co-director of the drug policy research center at RAND. Instead, he said, "the issue lost its saliency," and "politicians lost interest."...

Despite relaxation of the guidelines, people caught with crack cocaine still will face long prison terms. Congress so far has refused to retreat from the "mandatory minimum" laws that require prison terms of at least five years for possession of crack cocaine.

But some lawmakers have been pressing for change. Calling it "a terrible flaw in the criminal justice system," Sen. Joseph R. Biden Jr. (D-Del.), a Democratic presidential candidate, proposes eliminating the 100-to-1 disparity between powder and crack cocaine. Reps. Sheila Jackson-Lee (D-Texas) and Charles B. Rangel (D-N.Y.) have introduced similar bills in the House. Sens. Jeff Sessions (R-Ala.) and Orrin G. Hatch (R-Utah) -- have proposed raising the amount of crack cocaine that would trigger a mandatory prison term.

But none of these proposals has won approval from the judiciary committees of the House or Senate. Mark Kleiman, a UCLA professor of public policy and a drug policy expert, said: "Nobody [in Congress] wants to go home and explain why they let the crack dealers out of prison."